C. Devarajan v. Shaji Mangalalayam and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 22[ND] DAY OF JULY 2021 / 31ST ASHADHA, 1943** **MACA NO. 790 OF 2008** **AGAINST THE AWARD IN OP(MV)NO. 360/2002 OF I ADDITIONAL MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/PETITIONER:** **C.DEVARAJAN, AGED 57, S/O.E.K.CHAKRAPANI, ELLAR NIVAS,, MAYYANAD P.O., KOTTIYAM, KOLLAM.** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.BEATRICE FERIA SMT.LEKSHMI SWAMINATHAN SMT.PRIYA DEVI.P** ## **RESPONDENTS:** **1 SHAJI MANGALALAYAM, KADAPPAKKADA, KOLLAM DISTRICT., (REG.OWNER OF KL 2A/6992 HERO HONDA).** **2 REGHUNATHAN S/O RAGHAVAN, SIVAPAL NIVAS, NEAR MAYYANAD H.S., MAYYANADU P.O., (DRIVER OF KL 2A/6992 HERO HONDA).** **3 DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD, KOLLAM, (INSURER OF KL 2A/6992 HERO HONDA).** **BY ADV SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.790 of 2008 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No.790 of 2008 - - - - - - - - - - -- - - - - - - - - - - - - Dated this the 22[nd] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.360 of 2002 on the file of the I Additional Motor Accidents Claims Tribunal, Kollam. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 19.10.2001, while the appellant was riding his Scooter through KollamThiruvananthapuram National Highway, a Hero Honda motorcycle bearing registration No.KL 2A/ 6992 (offending vehicle) ridden by the 2[nd] respondent in a rash and negligent manner hit the Scooter of the appellant. The appellant sustained serious injuries in MACA.No.790 of 2008 **==> picture [7 x 9] intentionally omitted <==** the accident including a compound fracture on the left leg ankle metatarsal. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was the Branch Manger of Asian Steel Industries, Calicut and was earning a monthly income of Rs.12,000/-. The appellant contended that the respondents were jointly and severally liable to pay him compensation, which he quantified at Rs.1,11,000/-. 3. The respondents 1 and 2 filed a written statement contending that the claim petition was not maintainable and that the appellant had only sustained minor injuries. It was admitted that the offending vehicle was ridden by the 2[nd] respondent . Nevertheless, it was contended that the 2[nd] respondent was not negligent in causing the accident, but it was due to the negligence of the appellant that MACA.No.790 of 2008 _4_ ## the accident had happened. 4. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy. None the less, it was contended that in the FIR, the number of the offending vehicle was different. 5. The appellant examined a witness as PW1 and marked Exts.A1 to A18 series in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, dismissed the claim petition for the reason that the vehicle number mentioned in the FIR was KL 2A/ 7371, but in the final report it was mentioned as KL 2A/ 6996. 7. Aggrieved by the dismissal of the claim petition, the petitioner/appellant is in appeal. 8. Heard Smt.Lakshmi Swaminathan, the learned counsel for the appellant/petitioner and the MACA.No.790 of 2008 _5_ Sri.Lal George, the learned counsel appearing for the 3[rd] respondent-insurance company. 9. The questions that arise for consideration in the appeal is (i) whether the Tribunal was justified in dismissing the claim petitioner and (ii) whether the appellant is entitled for any compensation? 10. The specific case of the appellant in the claim petition was that while he was driving his Scooter along the Kolam – Thiruvananthapuram National Highway, a Hero Honda motorcycle bearing registration No.KL 2A/6992 ridden by the 2[nd] respondent in a rash and negligent manner hit his Scooter. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. 11. However, in Ext.A1 FIR registered by the Kollam Traffic Police in Crime No.562 of 2001, the offending vehicle's number was shown as KL 2 A/ MACA.No.790 of 2008 **==> picture [7 x 9] intentionally omitted <==** 7371. Nevertheless, the police in Ext.A2 final report found that it was due to negligence on the part of the 2[nd] respondent who rode the vehicle bearing registration No.KL 2A/6992 that the accident occurred. 12. The appellant had produced Ext.A7 judgment of the Judicial First Class Magistrate Court-1, Kollam, which substantiates that the 2[nd] respondent had pleaded guilty to the charges framed against him for the offences punishable under Section 279 and 338 of the IPC r/w section 134 (a) and (h) of the Motor Vehicles Act, 1988, and he was sentenced to pay a fine of Rs.1,750/-. Therefore, it is proved beyond any semblance of doubt that the accident was caused on account of the negligence of the 2[nd] respondent, who rode the offending vehicle in a rash and negligent manner, which the respondents have admitted. MACA.No.790 of 2008 **==> picture [7 x 9] intentionally omitted <==** 13. It is only on the basis of discrepancy in Ext.A1 FIR that the Tribunal dismissed the claim petition, for which the appellant cannot be found fault with. The course adopted by the Tribunal, according to me, is perverse and erroneous. The Tribunal ought to have looked into Ext.A2 final report and Ext.A7 judgment, which proves that the 2[nd] respondent was negligent in riding the offending vehicle, which is the case of the appellant in the claim petition and which stands corroborated by the evidence of PW1. Therefore, I set aside the findings in the impugned award holding the appellant has not proved that there was negligence on the part of the 2[nd] respondent. 14. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the offending vehicle. Therefore, I hold that it is the 3[rd] respondent who is liable to indemnify the liability of MACA.No.790 of 2008 _8_ the 1[st] respondent to pay the compensation to the appellant. 15. Now coming to the question of reasonable and just compensation. 16. The appellant had claimed that he was a Branch Manger in a Private Company and earning a monthly income of Rs.12,000/-. The appellant had produced Ext.A14 Saral Form to substantiate his income. However, the said Saral Form was submitted on 15.02.2002 i.e., nearly four months after the accident. Hence, the said document cannot be taken on its face value to fix the income of the appellant. 17. The appellant had also produced Ext.A15 salary certificate to prove that he was earning an annual income of Rs.74,100/-. The said certificate is unsigned and is not corroborated by its author. Therefore, I decline to accept the said document to fix MACA.No.790 of 2008 _9_ the income of the appellant. 18. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 19. Following the ratio in _**Ramachandrappa**_ _(supra)_ and taking note of the fact that the accident occurred in the year 2001, I hold that the appellant's notional income can safely be fixed at Rs.3,000/- per month. Hence, I re-fix the notional income of the appellant at Rs.3,000/- per month. ## **Loss of earnings** 209. It is on record that the appellant had sustained a compound fracture on his left leg ankle metatarsal. It is also proved by Ext.A12 discharge bill MACA.No.790 of 2008 _10_ that the appellant was treated as an in-patient for a period of six days. However, there is no document on record to prove that the appellant had suffered any permanent disability. Nevertheless, as the appellant had sustained a fracture and was treated as an inpatient for a period of six days and that he had claimed an amount of Rs.14,000/- towards 'loss of earnings', I hold that the amount claimed is reasonable. Hence, I fix the appellant's 'loss of earnings' at Rs.14,000/- as claimed in the claim petition. ## **Medical expenses** 21. The appellant has produced Ext.A8 to A11 and Ext.A17 to A18 series medical bills. On adding the total amount in the said medical bills, it is found that the appellant has expended an amount of Rs.6,086/towards 'medical expenses', which he is entitled to MACA.No.790 of 2008 _11_ get reimbursed. Therefore, I hold that the appellant is entitled for 'medical expenses at Rs.6,086/- ## **Byestander expenses** 22. As the appellant was treated as an in-patient for a period of six days, I hold that the appellant is entitled for 'byestander expenses' at Rs.200/- per day for six days, i.e. an amount of Rs.1,200/- . ## **Other heads of compensation** 23. Taking note of the injury sustained by the appellant, that he was treated as an in-patient for a period of six days and that he was indisposed for a period of more than four months, I hold that the appellant is entitled for compensation under the head 'pain and sufferings' and 'loss of amenities' at Rs.10,000/- each, totalling to an amount of Rs.20,000/-. I also feel that a reasonable amount of Rs.1,500/- has to be awarded towards 'extra MACA.No.790 of 2008 _12_ nourishment', Rs.500/- towards 'damage to clothing' and Rs.1,500/- towards 'transportation'. 24. On an overall re-appreciation of the pleadings and materials on record, I hold that the appellant/petitioner is entitled for compensation as recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amounts modified and<br>recalculated by this Court| |---|---|---| |1|Loss of earning|14,000/-| |2|Transport|1,500/-| |3|Damages to clothing|500/-| |4|Bye-stander expenses|1,200/-| |5|Expenses for extra nourishment|1,500/-| |6|Medical expenses|6,086/-| |7|Compensation for pain and sufferings|10,000/-| |8|Compensation for loss of amenities|10,000/-| |||44,786/-| In the result, the appeal is allowed, by setting aside the impugned award passed by the Tribunal and that the is entitled for a ordering appellant MACA.No.790 of 2008 _13_ compensation of Rs.44,786/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducing 289 days i.e., the period of delay in preferring the appeal and as ordered by this Court on 16.10.2019 in C.M.Appl.No.787 of 2008, and proportionate costs. The 3[rd] respondent shall deposit the compensation amount awarded in this appeal before the Tribunal with interest and costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation amount to the appellant, in accordance with law. Sd/- **C.S.DIAS,JUDGE** **dlk 22.07.2021**